HASNAIN BASHIR 33

Introduction:

Law is derived from the German word ‘Lag’ means fixed or evenly. Politically, as per
regulation and rules, it is enforced by the State to regulate human conduct for the
administration of Justice.

Meaning of Law:
According to Merriam Webster Dictionary, the meaning of the law is;
“A binding custom or practice of a community”.

Definition of Law:

According to Austin:
“Law is the command of a sovereign, it imposes a duty and is backed by Sanction”.
Or “Law is the aggregate of rules set by men as politically superior, or sovereign, to
men as politically subject”.

According to Salmond:
“Law is the body of principles, recognized and applied by the state for the
administration of justice”.

According to Polland:
“Law is a general rule of external human actions enforced by sovereign, the political
authority”.

Kinds of Law:

There are eight kinds of law which are discussed here as follow:
1. Imperative or Positive law.
2. Physical or scientific law.
3. Natural or moral law.
4. Conventional law.
5. Customary law.
6. Practical or Technical law.
7. International law.
8. Civil law.

1.Imperative Law

it is a command enforced by some superior power either physically or in any other

form of compulsion.

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The requirements of an imperative law are: –
● It must be a general rule;
● There must be some authority behind it
● It must be enforced by superior power by physical force or compulsion.

Kinds of Imperative Law

There are two kinds of imperative law, Divine or Human.

● Divine laws are consists of the commands imposed by God upon men either
by threats of punishments or by hope of his blessings.
● Human laws are the laws by analogy.

Here Sir John Salmond classifies human Laws into four sub classes.

⮚ Imperative Laws imposed and enforced by state (Civil Law).

⮚ Imperative Law imposed & enforced by members of society (Moral Law).
⮚ Those imposed & enforced by different institutions or autonomous bodies
like universities, Airline Companies etc. they are called “autonomic law”.
⮚ Those imposed upon states by the society of states are called International
Law.

2. Physical or Scientific Law

Physical Laws are expressions of the Uniformities of nature and general principles
expressing the Regularity and Harmony observable in the activities and operations
of universe.They are not the creation of men and cannot be changed by them.
Human laws change from time to time and from country to country but physical
laws are invariable forever.In other word Physical laws are absolute. The uniform
actions of human beings, such as law of psychology, also fall into this class. They
express not what man ought to do, but what they do.

3. Natural or Moral Law

“By natural or moral law is meant the principles of natural right and wrong (the
principles of natural justice)”. Natural laws have been called.

● Divine law i.e. commands of God imposed upon men

● Rational law i.e. being established by that reason by which’ the world is
governed
● Unwritten law (as being written not on brazen tablets or on pillars of stone
but by the finger of nature in the hearts of people)

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 ● Universal or common law (being of universal validity)

4.Conventional law:

Convention means agreement. Conventional law must have an agreement between

two parties- and not the force or coercion of a superior. It is thus the name given to
a body of rules agreed to be followed by some parties in order to regulate their
conduct towards one another. These are laws because they ensure uniformity of
conduct. International law is also a species of conventional law.

For example, the rules of cricket and other games.

Such Laws may be in two types:

1) Rules enforced by the parties themselves but not recognized by the State, e.g.,
the rules of cricket and other games.
2) Rules recognized and enforced by the State, e.g., the articles of association of a
limited company whereby the share-holders agree to be bound in certain
particulars.

5.Customary Law:

Customary laws are those rules of custom that are habitually followed by the
majority of persons subject to them in the belief of binding nature:

According to Salmond, customary law means “any rule of action which is actually
observed by men (any rule which is the expression of some actual uniformity of
voluntary action).”

When a custom is firmly established, it is enforced by the authority of the state.

Custom is not law by itself but an important source of law. Only those customs
acquired the force of law, which are recognized by the Courts.

6. Pratical or Technical Law:

Practical laws are such laws consists of rules which are to be followed to achieve
uniformity of result in practical or technical matters, These rules guide us as to what
we ought to do in order to attain certain ends. e.g., the laws of health, the laws of
architecture or manufacture.

7.International Law:

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According to Salmond; “Those rules which govern sovereign state in their relations
and conduct towards each other”.

According to Lord Russel; “The aggregate of rules to which nations have agreed to
conform in their conduct towards one another”.

International agreements are of two kinds. They are either expressed or implied.
1. Convectional International Law: Express agreements are contained in treaties
and conventions,
2. Customary International Law: Implied agreements are to be found in the
custom or practice of the states.

International law is of two kinds.

1. Public International Law: It prevails universally in all over the world.

2. Private International Law: It is enforced only between some of states.

8.Civil Law:

It is the law of the states regarding the land.

Civil law according to Salmond is “the law of the state or the law of the land, the law
of lawyers and the law of courts.”

Civil law is the positive law or the land, which means the law as it exists. It is backed
by the force and might of the state for purposes of enforcement. Civil law is
essentially territorial in nature as it applies within the territory of the state
concerned. Civil law differs from special law as the latter applies only in special
circumstances. The other term used for the civil law is municipal law and national
law.

Conclusion:
It is concluded that the definition of Law is that it is the body of principles which is
recognized and enforced by the State for the administration of Justice. It is difficult
to give it a comprehensive and perfect definition. As it is a social science which
grows and develops with the growth and development of society.

General

⮚ The judicial system of Pakistan passed through 3 distinct stages of historical

development, namely, Hindu Kingdom, Muslim-rule and British colonial
domination. The 4th and current era, Post-Independence.

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 ⮚ The system, thus, has evolved through a process of reform and development.
During this process of evolution and growth, the judicial system did receive
influences and inspirations from foreign doctrines/notions and indigenous
norms/practices, both in terms of organising courts’ structure and hierarchy,
and following procedures/practices in reaching decisions.

⮚ Therefore, the present judicial system is not an entirely foreign transplant, as

is commonly alleged, but has acquired an indigenous flavour and national
colour.

Historical Retrospect

1. Hindu Period: 1500 BC-1500 AC

I. Hindu Period: 1500 BC – 1500 AD
∙The major sources are ancient books such as Dharamshastra, Smiritis and
Arthashastra, and
commentaries on them. These sources indicate a well-defined system of
administration of
justice during the period.
∙The King was regarded as the fountain of justice who also discharged judicial
functions.
Judges, ministers and counsellors assisted him. The king was the final judicial
authority and
his court the court of ultimate appeal. Besides the king’s court, the court of Chief
Justice also
existed, hierarchically, below the King’s court. As such, appeals against its decisions
were
taken to the king’s court. Judges were appointed based on qualifications and
scholarship,
mostly restricted to the Brahmin upper caste.
∙At the village level, tribunals dispensed justice, which consisted of the assembly of
the
village. The village Headman acted as Judge/Magistrate for the community. The
decisions of
village/town courts/tribunals were appealable in the higher courts and final appeal
lay
before the King's Court. The system of arbitration was also in vogue.
∙No formal rules existed, as the law applicable was not statutory but customary or
moral. Civil
proceedings commenced with the filing of a claim which was replied to by the
opposite

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party. Both parties were allowed to produce witnesses
I

⮚ The Hindu period roughly extends from 1500 BC until 1500 AD. Information
on the judicial system during Hindu period has been from scattered sources,
such as ancient books like Dharamshastra, Smiritis and Arthashastra, and
commentaries of the same by historians and jurists. These sources construct a
well- defined system of administration of justice during the Hindu period.

⮚ The King was regarded as the fountain of justice who also discharged judicial
functions. In this task, judges as well as his ministers and counsellors assisted
him. He was the final judicial authority and court of ultimate appeal. At the
Capital, besides the King’s Court, the Court of Chief Justice existed. This Court,
in hierarchy, was next to the King’s Court and appeal against its decisions lay
to the King’s Court. The judges were appointed on the basis of their
qualifications and scholarship but the choice was mostly restricted to upper
caste i.e. Brahmins.

⮚ At the village level, tribunals dispensed justice, consisting of the assembly of

the village, or the caste or the family.The village Headman acted as
Judge/Magistrate for the community. Decisions by such tribunals were usually
through conciliation. The decisions of village/town courts/tribunals were
appealable in the higher courts and final appeal lay before the King’s Court.
Besides, judgment by the courts, the system of arbitration was also invoked As
regards the procedure followed in the courts/tribunals,

⮚ No formal rules existed, as the law applicable was not statutory but customary
and moral. The determination of truth and punishment of the wrong-doer was
regarded as a religious duty. Civil proceedings commenced with the filing of a
claim which was replied to by the opposite party.

⮚ Both parties were allowed to produce witnesses so as to prove their

respective claims. On the conclusion of the trial, decision was pronounced
which was duly enforced.

2. British Period

⮚ The East India Company was authorised by the Charter of 1623 to decide the
cases of its English employees. The Company, therefore, established its own
courts. The President and Council of the Company decided all cases of civil or
criminal nature. The subsequent charters further expanded such powers.
Thus the Charter of 1661 authorised the Governor and Council to decide not

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 only the cases of the Company employees but also of persons residing in the
settlement. In deciding such cases, the Governor and the Council applied the
English laws.

⮚ As the character of the Company changed from one of a trading concern into a
territorial power, newer and additional courts were established for deciding
cases and settling disputes of its employees and subjects. The administration
of justice was initially confined to the presidency town of Bombay, Calcutta
and Madras. In view of the huge distances between these towns and the
peculiar conditions prevailing there, the administration of justice, which
developed in these towns, was not uniform.

⮚ There were established two sets of courts, one for the Presidency towns and
the other the mufussil. The principal courts for the town were known as the
Supreme Courts and Recorders Courts. These courts consisted of English
judges and applied English laws. The English people, residing in such towns
alone, were subject to their jurisdiction. The native inhabitants, who were
mostly living in the mufussil, were governed under separate courts called
Sadar Dewani Adalat and Sadar Nizamat Adalat, dealing with civil and
criminal cases respectively. Such courts applied the local laws and
regulations.

⮚ The Supreme Court of Calcutta was established by the letter Patent issued on
1773. The Court exercised both civil and criminal jurisdiction. The Court could
also issue certain prerogative writs.

⮚ Recorders Courts were established at Madras and Bombay with powers

identical to the Supreme Court of Calcutta. Afterwards, the Recorders Court at
Madras was substituted by the Supreme Court. A few years later, the
Recorders Court at Bombay was also replaced by the Supreme Court. These
new Courts had indeed the same composition, jurisdiction and powers as
exercised by the Supreme Court of Calcutta.

The Indian High Court’s Act 1861

⮚ The High Court Act 1861 abolished the Supreme Courts as well as the Sardar
Adalats and in their place constituted the High Court of Judicature for each
Presidency-town.

⮚ The High Courts exercised original as well as appellate jurisdiction in civil and
criminal matters and were also required to supervise the functioning of the
subordinate courts in their respective domain.

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The Government of India Act 1935

⮚ Provincial autonomy was established in India with the establishment of the

Government of India Act 1935. This act retained the High Courts and also
provided for the creation of a Federal Court.
⮚ The Federal Court was the first Constitutional Court and the second highest
Court in the judicial hierarchy in India. It had original jurisdiction in matters
where there was dispute between the provinces or federal states. It was also
the Appellate court for the judgment, decree or final orders of the high court.
Thus The Federal Court exercised original, appellate and advisory jurisdiction.

Introduction
Pakistan current legal system is based on English common with provisions in the
constitution to accommodates Pakistan status as an Islamic State.
Pakistan legal system is based on the concept of Separation of Power.

Separation of Power

Separation of powers, also known as Trias Politica, is the idea that the government
must be based on “three separate branches” where power is wielded, so they can
keep a check on each other. This idea was proposed by Charles De Montesquieu,
French philosopher (1689 – 1755). In essence, there are three organs in almost
every state, entrusted with specific functions under the Constitution; legislative,
executive, and judiciary. The different tasks are assigned to them to run the country.
The distribution of powers among these three organs is not absolute. Under
the doctrine of Separation of Powers, a system of check and balance establishes to
avoid tyranny and abuse of power. This doctrine is adopted in the light of the fact
that a single institution holding all power may act arbitrarily as it would not be
accountable to anyone for its actions, which may affect the state negatively. This
doctrine is a key feature of democracy.
The doctrine of separation of powers divides the powers of State among three
organs in such a way that one organ keeps a check on and is accountable to, the
other organ. 
For example, The legislative organ is responsible to make laws and pass financial
bills but they require the authorization of the President who is a part of the
executive organ. The executive organ is responsible for daily administration work
but they are responsible to the legislature for their actions. The judicial organ is
responsible to interpret the laws and settle disputes but appointments to the
judiciary and their removal are governed by legislative and executive organs.

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Judicial organs also keep a check on legislations and administrative order made. It
may declare them null and void if they are inconsistent with fundamental rights or
the constitution of the state. For this judiciary has to be impartial and non-political.
Thus, each organ is accountable to and monitored by the other.
The design of separation of powers differs from country to country. In some
countries, there’s a complete separation not only with reference to functions but
also between each person of the separate branches. In such a system, a person
cannot serve in more than one branch. Members of the cabinet representing the
executive organ can be part of the National Assembly which represents a part of
parliament. It is impossible to achieve absolute separation of power, some
overlapping will occur especially between the legislature and executive branches.
However, the separation between the judiciary and the other two branches is very
strict, as the judiciary must be independent and free from political influence. In
Pakistan, the judiciary has the power to pronounce upon the accent decision of
executive and legislative power of government. The judicial power can decide on the
constitutionality of laws and declare invalid any exercise of power that is not
authorized by law and conflicts with the constitution. This is known as a judicial
review.
Parliamentary democracies like Pakistan do not have distinct separation of powers.
The executive which often consists of prime minster and cabinet is drawn from the
the legislature (Parliament). However, although the legislative and executive
branches are connected, in parliamentary systems there is usually an independent
judiciary.
The Power of dissolution
⮚ The power of dissolution is the power to end the term of office of a parliament
(or other legislative body) so as to require new elections to take place.
⮚ Parliaments are compulsorily or automatically dissolved at the end of their
scheduled term of office.
⮚ Most parliamentary and semi-presidential systems also allow for the
premature dissolution of parliament before the scheduled end of its term of
office. This can be a way of breaking deadlocks within parliament, or
between parliament and the government, by appealing to the people.
Advantages and risks
The dissolution of parliament is a powerful political tool which, being closely
associated with the process of government formation and removal, can affect the
overall balance of power in the polity. If a broad power of dissolution is vested in
the head of state or head of government, then the political system will tend to
concentrate powers in those institutions, which may encourage stable and

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effective government, but at the cost of diminished parliamentary scrutiny; if the
dissolution of power is limited, or is exercised by parliament itself, then parliament
will be a relatively stronger institution, which may have advantages in terms of
deliberation, inclusion and accountability, but at the potential cost of executive
strength and stability.

continued to function and so did the

Sindh Chief Court and the courts of
Judicial
Commissioner in NWFP and
Balochistan. A new High Court was
set up at Dacca.
∙A new Federal Court for Pakistan
was also established by the Federal
Government of Pakistan
Order 1948. The powers, authority
and jurisdiction of the Federal Court
and High Courts, as
prescribed in the Government of
India Act 1935, remained intact.

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∙By the Federal Government of
Pakistan Order 1948 and subsequent
Constitutions i.e. 1956,
1962 and 1973 did not drastically
alter the judicial structure or the
powers and jurisdiction of
the superior courts. The changes
effected were, renaming the Federal
Court as the Supreme
Court by the 1956 Constitution and
upgradation of the Chief Court of
NWFP and Judicial
Commissioner Court of Balochistan
into full-fledged High Courts, by the
1973 Constitution
∙A new Federal SharTopic: Political Institution
POLITICAL INSTITUTION:
Political institutions are the organizations in a government that create, enforce, and
apply laws. They often mediate conflict, make (governmental) policy on the

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economy and social systems, and otherwise provide representation for the
population.
In general, democratic political regimes are divided into two types: presidential
(headed by a president) and parliamentary (headed by a parliament). Legislatures
built to support the regimes are unicameral (only one house) or bicameral (two
houses—for example, a senate and a house of representatives or a house of
commons and a house of lords).
Political institutions and systems have a direct impact on the business environment
and activities of a country. For example, a political system that is straightforward
and evolving when it comes to the political participation of the people and laser-
focused on the well-being of its citizens contributes to positive economic growth in
its region.
Every society must have a type of political system so that it may allocate resources
and ongoing procedures appropriately. A political institution sets the rules in which
an orderly society obeys and ultimately decides and administers the laws for those
that do not obey.
Types of Political Systems
The political system consists of both politics and government and involves the law,
economy, culture, and other social concepts.
The most popular political systems that we know of around the world can be
reduced to a few simple core concepts. Many additional types of political systems
are similar in idea or root, but most tend to surround concepts of:
● Democracy: A system of government by the whole population or all the
eligible members of a state, typically through elected representatives.
● Republic: A state in which supreme power is held by the people and their
elected representatives and that has an elected or nominated president rather
than a monarch.
● Monarchy: A form of government in which one person reigns, typically a king
or a queen. The authority, also known as a crown, is typically inherited.
● Communism: A system of government in which the state plans and controls
the economy. Often, an authoritarian party holds power and state controls are
imposed.
● Dictatorship: A form of government where one person makes the main rules
and decisions with absolute power, disregarding input from others
A set of norms relating to distribution of power and authority concerning the
management and control of society to bring order in life.
Parties, Trade Unions, and Courts

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In addition, political institutions include political party organizations, trade unions,
and the (legal) courts. The term 'political Institutions' may also refer to the
recognized structure of rules and principles within which the above organizations
operate, including such concepts as the right to vote, a responsible government, and
accountability.
Following is the structure provided by political institution
Political institution may be formal as well as informal. At once both can be function
a).Informal :- mostly found in primitive socities, rural areas
● no fixed and written rules,powers and authorities
● bradari system,jirga system
● popularity and effectiveness of decisions

b).Formal
● power and authorities are fixed
● supreme power distribute some powers to administration at lower level
● more human activities.
Main branches of government
1.legeslation.(makes laws for state)
2.judiciary(it defines law)
3.executive(implementation of law)
What is System
A set of things working together as parts of a mechanism or an interconnecting
network; a complex whole.
"the state railway system"
Political System
A political system is a system of politics and government. It is usually compared to
the legal system, economic system, cultural system, and other social systems. It’s is
present in different forms i-e democracy,socialism,dictatorship, communism etc
Political Organization Any entity involved in political process such as Political
parties. Including bill of rights, constitution and Roles
Types of Political Parties
1: Single party system e.g: North Korea, Cuba and china
2: Two party system e.g: United states and Nepal
3: Democratic multi-party system e.g: Pakistan, India, south Africa, France and
Germany

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 THE PARLIAMENT
Basic Articles: 50, 51, 52, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, and 66.
MAJLIS-E-SHOORA (PARLIAMENT): Article 50 explains that the Parliament of
Pakistan consists of the President and two houses to be known as the Upper House
(Senate) and the Lower House (National Assembly). It is bicameral system. It is the
legislative branch of Pakistan.
National Assembly: Under Article 51, there shall be 342 seats in the National
Assembly, including seats reserved for women and non-Muslims. Among these 12
seats are allocated to FATA, and two seats to Federal Capital. The seats of national
assembly shall be allocated to each Province, on the basis of population.
Qualification of voters: Article 51(2) defines the qualification of voters:
a.He is a citizen of Pakistan.
b.He is not less than eighteen years of age.
c.His name appears on the electoral roll.
d.He is not declared by a competent court to be of unsound mind.

DURATION OF THE NA: Article 52 explains that , the duration of NA continues for a
term of five years from the day of its first meeting and shall stand dissolved at the
expiration of its terms, unless sooner dissolved.
SPEAKER AND DEPUTY SPEAKER OF NA: Article 53 explains that , after the
general election, the National Assembly at its first meeting shall elect a Speaker and
a Deputy Speaker among its members, who shall take oath before entering to their
offices. If the speaker is the presiding officer of National Assembly, if he is absent or
unable to attend Assembly, then Deputy Speaker will preside the Assembly, if both
are unable than any other person who is determined by the rule of procedure shall
preside over National Assembly. The Speaker may resign by writing under his hand
to the president, and deputy speaker may resign to the Speaker . His office will be
vacant if, he resigns or ceases to be a member of the assembly, or if he is removed
from office by resolution of the assembly. When the assembly is dissolved, the
speaker will continue his office until his successor elects and enters upon his office.
VOTING IN ASSEMBLY AND QUORUM: According to Article 55, the decisions of
National Assembly will be taken by majority of the members present and voting, but
the person who is presiding will not vote except in the case of equality of votes. The
person who is presiding can adjourn the Assembly or suspend the meeting until at
least one-fourth of such membership is present.
RIGHT TO SPEAK IN NATIONAL ASSEMBLY: Under Article 57, The Prime Minister,
a Federal Minster, a Minister of State and Attorney General have right to attend

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either houses, or a joint sitting or committee thereof, of which he may be named a
member but has no right to vote.
DISSOLUTION OF NATIONAL ASSEMBLY: According to Article 58, the president
shall dissolve the NA:
a. By advice of the Prime Minister.
b. By his discretion if a vote of no-confidence against the Prime Minster is
passed, or a situation has arisen in which the government of the federation cannot
be carried on, in accordance with the provisions of the constitution. After 15 days of
dissolution the matter is referred to Supreme Court and Supreme Court shall decide
the reference within 30 days, whose decision shall be final.
THE SENATE: Article 59 explains that, the Senate consists of 100 members:
a. Fourteen will be elected by members of each provisional assembly.
b. Eight shall be elected direct from FATA in a manner which president may
order,
c. Two general seats, and one woman and one technocrat including AALIM
from the Federal Capital in such manner as president may order,
d. Four women members shall be elected by the members of each
provincial assembly,
e. Four technocrats including Ulema from each Provincial Assembly shall
be elected.
f. Four non-Muslims from each Provincial Assembly shall be elected, by
the members of provincial assembly.
Senate will not dissolve and the term of each member is 06 years, the
first will be retired in the season of first three years and second in the second
season of three years.

PURPOSE & ROLE

The main purpose for the creation of the Senate of Pakistan was to give equal
representation to all the federating units since the membership of the National
Assembly was based on the population of each province. Equal provincial
membership in the Senate, thus, balances the provincial inequality in the National
Assembly and dispels doubts and apprehension, if any, regarding deprivation and
exploitation.
The role of the Senate is to promote national cohesion and harmony and to alleviate
fears of the smaller provinces regarding domination by any one province because of
its majority, in the National Assembly.
The Senate of Pakistan is a body which represents the provinces/territories of the
country and promotes a feeling of equality, peace and harmony, which is so
essential for the growth and prosperity of a nation. Thus, the Senate in Pakistan,

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over the years, has emerged as an essential organ and a stabilizing factor of the
federation.
Difference between Senate and National Assembly
The National Assembly has an edge over the Senate by legislating exclusively on
money matters. With exception to money bills, however, both the houses work
together to carry out the basic work of the Parliament, i.e. law making. The bill
relating to the Federal Legislative List can be originated in either house.
CHAIRMAN AND DEPUTY CHAIRMAN: According to Article 60, after the senate has
been duly constituted, the chairman and deputy chairman will be elected amongst
the members at the first meeting. The terms of office of the Chairman and Deputy
Chairman shall be three years from the day on which they enter upon their offices.
Deputy Chairman shall act as a Chairman, if in case, the Chairman is absent, or
acting as the President.

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